Exhibit 10.1
Amended and Restated Voting Agreement
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This Amended and Restated Voting Agreement (this "Agreement") is made as of
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April 15, 1999, among LifeCell Corporation, a Delaware corporation (the
"Company"), and the Stockholders (as defined below).
Vector Later-Stage Equity Fund, L.P. ("Vector"), CIBC Wood Gundy Ventures,
Inc. ("CIBC-WG"), and the other Persons identified as "Stockholders" on Annex A
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attached hereto (collectively, the "Stockholders") and the Company are parties
to that certain Securities Purchase Agreement dated November 18, 1996 (the
"Purchase Agreement"), pursuant to which the Stockholders purchased shares of
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the Company's Series B Preferred Stock, par value $.001 per share (the "Series B
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Preferred"), and warrants to purchase shares of the Company's common stock, par
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value $.001 per share (each, a "Warrant"). The Investors and the Company also
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are parties to that certain Voting Agreement dated November 18, 1996 (the
"Voting Agreement"), entered into in connection with the Purchase Agreement.
Subsequent to the execution and delivery of the Voting Agreement, certain events
have occurred that have caused the Stockholders and the Company to desire to
amend the Voting Agreement to take into account such events, and the
Stockholders and the Company desire to enter into certain other amendments to
the Voting Agreement. Accordingly, the Stockholders and the Company desire to
enter into this Agreement to effect such amendments to the Voting Agreement by
amending and restating the Voting Agreement in its entirety.
The Company and the Stockholders hereby agree as follows:
1. Certain Definitions.
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Capitalized terms used but not defined herein shall have the meanings
assigned such terms in the Purchase Agreement.
"Stockholder Shares" means, as of any particular time, (i) any Common Stock
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purchased or otherwise acquired by any Stockholder, (ii) any Common Stock issued
or issuable directly or indirectly upon conversion of Preferred Stock or upon
exercise of Warrants, in each case, owned by a Stockholder, (iii) any capital
stock or other equity securities issued or issuable directly or indirectly with
respect to Common Stock referred to in clause (i) or clause (ii) above by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. For purposes
of this Agreement, any Person who holds Preferred Stock or Warrants shall be
deemed to be a Stockholder and the holder of Stockholder Shares issued or
issuable upon conversion of such Preferred Stock or exercise of such Warrants
(as the case may be) in connection with the transfer thereof or otherwise and
regardless of any restriction or limitation on the conversion or exercise
thereof.
2. Board of Directors.
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(a) From and after the date of this Agreement, each holder of
Stockholder Shares shall vote all of its Stockholder Shares and shall take all
other necessary or desirable actions within its control (whether in its capacity
as a stockholder or as an officer or director of the Company or otherwise, and
including, without limitation, attendance at meetings in person or by proxy for
the purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and the Company shall take all necessary and desirable actions within
its control (including, without limitation, calling special Board and
stockholder meetings), so that:
(i) the maximum authorized number of directors on the Board shall be
established initially at nine directors and shall be reduced in accordance with
clauses (viii) and (ix) of this Section 2(a);
(ii) the following individuals shall be elected to the Board:
(A) two representatives (the "Investor Directors") designated by holders of
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a majority of the Underlying Common Stock (the "Majority Investors"), which
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Investor Directors shall include one representative designated by Vector (the
"Vector Representative"), which Vector Representative currently is X. Xxxxx
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McDonald, and one representative designated by CIBC-WG (the "CIBC-WG
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Representative"), which CIBC-WG Representative currently is Xxxx X. Xxxxxxx;
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(B) the Chief Executive Officer of the Company (who currently is Xxxx X.
Xxxxxx), Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxx (each, a "Company Director");
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(C) one individual who is neither a member of the Company's management nor
an employee or an officer of the Company (the "Initial Outside Director"), who
currently is Xxxxxxx X. Xxxx, and two individuals jointly designated by the
Investor Directors and the Company Directors each of whom is neither a member of
the Company's management nor an employee or an officer of the Company (the
"Additional Outside Directors"), one of which Additional Outside Directors
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currently is Xxxxx X. Xxxxxxxx, and one of which directorships currently is
vacant; and
(D) one representative (the "Medtronic Director") designated by Medtronic,
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Inc., a Minnesota corporation ("Medtronic"), who currently is Xxxxx X. Xxxxxx;
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(iii) the removal from the Board (with or without cause) of any Vector
Representative, any CIBC-WG Representative or any Majority Investors
Representative shall be at the written request of Vector, CIBC-WG or the
Majority Investors, respectively, but only upon such written request and under
no other circumstances;
(iv) the removal from the Board (with or without cause) of any Company
Director or the Initial Outside Director shall be at the written request of the
majority of the other directors then in office, but only upon such written
request and under no other circumstances;
(v) the removal from the Board (with or without cause) of the Medtronic
Director shall be only in accordance with and as contemplated by Section 6.3 of
the Investment Agreement dated May 3, 1994 between the Company and Medtronic
(the "Medtronic Investment Agreement"); provided that the Company shall not
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agree to any amendment to such Section 6.3 without the prior consent of the
Majority Investors;
(vi) in the event that any Investor Director or any Additional Outside
Director designated hereunder for any reason ceases to serve as a member of the
Board during his or her term of office, the resulting vacancy on the Board shall
be filled in the manner set forth above in clause (ii) of this Section 2(a) by a
representative designated by the same group that designated the member that will
no longer serve on the Board; provided that if such group fails to designate a
representative to fill such vacancy, the election of an individual to fill such
vacancy shall be accomplished in accordance with the Company's bylaws and
applicable law; provided, further, that the Stockholders shall thereafter vote
to remove such individual if the group which failed to designate a
representative to fill such vacancy pursuant to this Section 2(a) so directs;
(vii) in the event that the Initial Outside Director for any reason
ceases to serve as a member of the Board during his term of office, the
resulting vacancy shall be filled by the vote of a majority of the other
directors then in office;
(viii) in the event that any Company Director (other than the Chief
Executive Officer) for any reason ceases to serve as a member of the Board
during his term of office, the resulting vacancy shall not be filled and the
number of authorized directors on the Board shall be reduced by the number of
such directors who have ceased to serve on the Board; and
(ix) at such time when Medtronic no longer has the right to appoint a
director pursuant to Section 6.3 of the Medtronic Investors Agreement, the
number of authorized directors on the Board shall be reduced by one and the
resulting directorship shall not be filled.
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(b) The Company shall pay all out-of-pocket travel and other expenses
incurred by each director in connection with attending the meetings of the Board
or any committee thereof. So long as any Investor Director serves on the Board
and for three years thereafter, the Company shall maintain directors and
officers indemnity insurance coverage satisfactory to the Majority Investors,
and the Company's certificate of incorporation and by laws shall provide for
indemnification and exculpation of directors to the fullest extent permitted
under applicable law.
3. Stockholder Covenant. No holder of Stockholder Shares shall grant
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any proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
4. Termination. This Agreement shall terminate at the later of (i)
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such time when none of the Series B Preferred is outstanding and (ii) such time
when the Company no longer has any obligation to deliver financial and other
information to certain Investors pursuant to Section 6.8 of the Purchase
Agreement.
5. Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
6. Remedies. Each Stockholder shall be entitled to enforce its rights
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under this Agreement specifically, to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing in
their favor. Each Stockholder hereby acknowledges that money damages would not
be an adequate remedy for any breach of the provisions of this Agreement and
that each Stockholder may in its sole discretion apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive
relief (without posting a bond or other security) in order to enforce or prevent
any violation of the provisions of this Agreement.
7. Notices. Any notice provided for in this Agreement shall be in
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writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Stockholder at the address indicated on Annex A hereto (which
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address is the same address set forth on Annex A to the Voting Agreement ) or at
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such address or to the attention of such other person (including any subsequent
holder of Stockholder Shares) as the recipient party has specified by prior
written notice to the sending party. Notices shall be deemed to have been given
hereunder when delivered personally, three days after deposit in the U.S. mail
and one day after deposit with a reputable overnight courier service.
8. Amendment and Waiver. This Agreement may be amended, modified and
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supplemented, and compliance with any term, covenant, agreement or condition
contained herein may be waived either generally or in particular instances, and
either retroactively or prospectively, only by a written instrument executed by
(a) the Company and (b) the Majority Investors. No course of dealing between or
among any persons having any interest in this Agreement will be deemed effective
to modify, amend or discharge any part of this Agreement or any rights or
obligations of any person under or by reason of this Agreement.
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9. Governing Law. The corporate law of the State of Delaware shall
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govern all issues and questions concerning the rights of the Company and the
rights of the Stockholders relative to the Company. All other issues and
questions concerning the construction, validity, interpretation and
enforceability of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of New York or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of New York.
10. Descriptive Headings. The descriptive headings of this Agreement
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are inserted for convenience only and do not constitute a part of this
Agreement.
11. Entire Agreement. This Agreement sets forth the entire agreement
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among the parties hereto with respect to the subject matter hereof, and
supersedes any prior oral or written agreement among the parties, including
without limitation thereto the Voting Agreement.
12. Holdings of Series B Preferred. Based on the Company's records,
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each Stockholder holds the shares of Series B Preferred set forth on Annex A
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hereto.
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IN WITNESS WHEREOF, the Company and the undersigned Stockholders
(constituting the Majority Investors) have executed this Agreement as of the day
and year first above written.
LIFECELL CORPORATION
By /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President and Chief Executive Officer
VECTOR LATER-STAGE EQUITY FUND, LP
By Vector Fund Management, L.P., its General Partner
By /s/ X. Xxxxx XxXxxxxx
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Name: X. Xxxxx XxXxxxxx
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Title: Managing Director
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CBIC WOOD GUNDY VENTURES, INC.
By /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Managing Director
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ANNEX A
LISTING OF SERIES B SHAREHOLDERS
TAX ID NAME TOTAL OUTSTANDING
Xxxxxx X. Xxxxx 1,652
Xxxx X. Xxxxx & Xxxx X. Xxxxx 264
Xxxx X. Xxx 230
Xxxxxx Xxxxxxxxxxx 158
Xxxxxxx X. Xxxx 531
Chinook Equities Inc. 531
CIBC Wood Gundy Ventures Inc. 47,805
Xxxx Xxxxxxx 264
P. Xxxxxxx Xxxxxxx 425
Xxxxx X. Xxxx Tr. of the Xxxxx X. Xxxx Trust 668
Xxxxx X. Xxxx & Xxxxxx X. Xxxxxxxx 1,644
Xxxxxxx Xxxxxxx 1,065
Gruntal & Co. Inc. Cust FBA Xxxx Xxxxxxxxx XXX 3
Gruntal & Co. Inc. Cust FBA Xxxxxxx X. Xxxxxxx XXX 56
Xxxxxxx Xxxxxx 42
Xxxxxx X Xxxxx 328
Xxxxxxx Xxxxxxxxx 262
Xxxxxxx X. Xxxxxxx Tr. of the Xxxxxx X. Xxxxxxx Trust 25
Xxxxxxx X. Xxxxxxx Tr. of the Xxxxxx X. Xxxxxxx Trust 25
Xxxxxxx X. Xxxxxxx 51
Xxxxx Xxxxxx Inc. Cust Xxxxxxxxxxx X Xxxxx Xx. 264
Xxxx Xxxxxxx 22
Xxxxxxx Xxxxxxx 264
Xxxxxxx X. XxXxxxxxx 196
B. Xxxxxxx Xxxxxx 30
Xxxxxxx X. Xxxxxxxx 425
Xxxxx Xxxxxxx 264
Xxxxxx X. Xxxxx 163
Xxxxxx Xxxxxxxxx 495
Xxxxx Xxxx 531
Xxx X. Xxxxxxx 660
SBSF Biotechnology Fund LP 9,602
SBSF Biotechnology Partners LP 1,065
Xxxxxxx X. Xxxxxxx 51
Technology Funding Medical Partners ILP 2,666
Vector Later-Stage Equity Fund LP 42,681
Xxxxxxx X. Xxxxx 350
The Woodlands Venture Capital Company 2,666
